A marriage of fear and xenophobia

Our criminalization of polygamy isn't about protecting women

SUSAN DRUMMOND

April 6, 2009

Teaches family law at Osgoode Hall Law School

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Canada signed the international Women's Convention in 1980, and thereby
committed itself to "take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations." The convention recommends that states acknowledge that
"polygamous marriage contravenes a woman's right to equality with men." Is
there a way to square the decriminalization of polygamy with our
international commitment in a way that does not prey on our fear of those
who are different from us?

The Criminal Code's polygamy section, from its inception through its
bizarre history of virtual non-use, has always been shrouded in an aura of
xenophobia and racism. The provision itself was drafted in 1892 under
pressure from the U.S. government, busy enacting its own criminal law
targeting fundamentalist Mormons. We had no shame in similarly tailoring our
polygamy law to single out this religious minority - a piece of blatant
religious discrimination rectified only in 1954.

As American scholar Martha Ertman notes, the leading American case on
polygamy from 1879 held that polygamy was "odious among the northern and western
nations of Europe" and "almost exclusively a feature of the life of Asiatic and
of African people."

One of the rare convictions under the polygamy section was against an
aboriginal man who was living in a customary marriage with two women. The judge
noted in the 1899 case: "It is plain that among the savage tribes on this
continent marriage is merely a natural contract and that neither law, custom nor
religion has affixed to it any conditions or limitations or forms other than
what nature has itself prescribed." Under Canadian common law, for aboriginal
people alone, consent constitutes marriage and living together constitutes
consent - an understanding that was sufficient to tear Bear's Shin Bone from his
family and community for five years in prison.

The conjunction of Canada's lonely conviction of an aboriginal man under the
polygamy provision and this view of fundamentalist Mormons as race traitors
should signal to us that the "family values" underpinning the section are poised
to operate as a form of discipline for socially and politically marginalized
people.

There are other ways of protecting women and children from abusive marriages
(polygamous or monogamous) that don't lead us into these perilous waters. Many
of these mechanisms are already at our disposal.

The Criminal Code clearly prohibits sexual activity between adults and
children under the age of 16. If there is a shred of credible evidence that this
criminal activity has been going on in Bountiful, B.C., then it is woefully
lamentable that charges were not laid under these provisions. If wives are
vulnerable to abuse in Bountiful, domestic abuse is a criminal offence under our
assault provisions in the Criminal Code. Yet, the only charges coming out of
Bountiful are under the anachronistic polygamy section.

Canadian child-support laws already go further than other countries in
imposing obligations on biological parents and those who, like step-parents,
stand in place of parents. No matter what the antecedent family configuration,
both biological and psychological parents owe child support when separate
households result. Both parents in polygamous and monogamous marriages are in
this position. Indeed, some wives who think they are in monogamous marriages may
be surprised to find that their husband's income (and potentially the household
income) will be unequivocally diminished by his children with a mistress,
whether or not she consents.

Some provinces already have laws in place that require spouses in polygamous
marriages to divide up marital assets equally on separation, as per the default
regime for monogamously married spouses. These laws have yet to be used, but the
legislative framework is in place for divvying up a husband's pension and other
assets among his wives.

Courts have already generated some surprising decisions on spousal support in
which both mistresses and wives are entitled to their conjugal partner's support
following separation - whether or not the wife was aware of the mistress's
existence.

Women in polygamous marriages have fair and effective notice of their
economic vulnerabilities to sister wives and their children. How many wives,
whose husbands are surreptitiously in a conjugal relationship with a mistress,
are aware of their financial exposure? One of the other rare prosecutions in the
past 100 years under the polygamy provision established (through an acquittal)
that adultery is perfectly consistent with monogamy. The sighs of relief from
monogamously, but loosely, married husbands should be accompanied by a gulp of
anxiety from their respectably married wives.

If we are serious about eliminating discrimination against women in all
matters relating to marriage and family relations, how about instituting a
national daycare program that would provide some assurance to mothers leaving
any kind of crappy marriage that they might be able to afford decent child
care while they work, train or educate themselves into financial independence?
Research indicates that astonishing numbers of single mothers will return to
abusive relationships rather than suffer the degradations and deprivations of
welfare.

Maybe it's time we put some money where the solicitous mouth is. Meantime,
decriminalizing polygamy and protecting women need not be mutually exclusive
aspirations.

"how about instituting day care for - mothers leaving ANY kind of
crappy marriage?

Then "research shows an astonishing number of single mothers will return to
abusive relationships rather than suffer the degradations and deprivations of
welfare"

Notice that she avoids any mention of MEN forced to REMAIN in "Crappy"
"abusive " relationships rather than suffer , not just the degradations and
deprivations of welfare but, the greater probability of the father never seeing
his children again, thanks to the typical feminist propaganda above.